United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-30129 

____________ 

Glenn R. Stewart; Parc Gardens, L.L.C.; Maison 

Lafayette, L.L.C., doing business as Camelia Gardens, L.L.C., 

Plaintiffs—Appellants, 

versus

Morton M. Gruber; Gruber & Associates Architects, 

L.L.C.; Thomas Metzger; Metzger Architecture, L.L.C., 

Defendants—Appellees, 

Frederick W. Keeney; F W Keeney & Associates, 

Third Party Defendants—Appellees. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Louisiana 

USDC No. 6:20-CV-1479 

______________________________ 

Before Clement, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

December 14, 2023 

Lyle W. Cayce 

Clerk 

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2 

 Plaintiffs1 appeal from two interrelated district court orders: (1) the 

exclusion of their expert’s reports and testimony, and (2) the grant of Defendants’ motion for summary judgment. We AFFIRM. 

I. Background 

Plaintiffs hired the Architect Defendants2

 to design an apartment 

complex. Post-construction, Plaintiffs sued the Architect Defendants in 

Louisiana state court for professional negligence and breach of contract. 

Plaintiffs alleged that the architectural design was faulty and causing defects 

in the apartment building. They therefore sought damages to offset the alleged cost of repairs and to mitigate the alleged deficiencies. The Architect 

Defendants jointly removed the lawsuit to federal court. 

 In January 2021, the district court issued a scheduling order with an 

October 2021 deadline for Plaintiffs’ expert information and reports and a 

June 2022 trial date. In February 2021, certain Architect Defendants filed a 

third-party complaint against the Keeney Defendants,3

 who had provided 

mechanical and plumbing design for the apartment complex. The Keeney 

Defendants filed a consent motion to extend pretrial scheduling deadlines, 

which the district court granted. The district court also issued a new scheduling order with an April 21, 2022 deadline for Plaintiffs’ expert information 

and reports and a December 2022 trial date. 

_____________________ 

1

 “Plaintiffs” refers to Glenn R. Stewart; Parc Gardens, L.L.C.; and Maison 

Lafayette, L.L.C., doing business as Camelia Gardens, L.L.C. 

2

 The “Architect Defendants” refers to Defendants Morton M. Gruber; Gruber & 

Associates Architects, L.L.C.; Thomas Metzger; and Metzger Architecture, L.L.C. 

3

 The “Keeney Defendants” refers to Third-Party Defendants Frederick W. 

Keeney and F W Keeney & Associates. 

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 In February 2022, Plaintiffs produced in response to a discovery request a field report that Dyke Nelson authored. Plaintiffs also indicated in 

the same discovery responses that they had “not yet retained expert witnesses in this matter.” 

Plaintiffs did not produce expert information or reports by the court’s 

April 21, 2022 deadline. But on April 26, 2022, Plaintiffs emailed to Defendants what they described as a “preliminary expert report,” (the “April 26 

Report”) noting that “[a]n amended report is currently being prepared.” 

The April 26 Report was effectively a restyling of Nelson’s field report that 

Plaintiffs had previously produced in discovery, with the addition of a summary of Nelson’s firm and a list of the firm’s relevant projects and previous 

experience. In the same email, Plaintiffs stated that “while we are in the 

midst of discussing an extension of expert deadlines, I thought it prudent to 

circulate this draft.” The last line in the email requested that the Architect 

Defendants “[p]lease advise at your earliest convenience, no later than end 

of day [April 28, 2022] whether a Motion to Extend Expert Deadlines will be 

opposed.” 

 On May 4, 2022, Plaintiffs’ counsel informed Defendants’ counsel 

via email that “[r]egrettably, after discussions and further review of the 

schedule, we do not have authority and will not be able to join in a motion to 

continue any dates or deadlines.” Plaintiffs also advised that an amended 

expert report would be forthcoming. 

 Then, on May 13, 2022, Plaintiffs sent to Defendants a “supplemental 

expert report” (the “May 13 Report”). The May 13 Report included for the 

first time a page about Nelson’s qualifications, a list of rates charged by Nelson’s firm, and a statement that “[t]he overall condition of the project is below industry standards for a product of this type (Class A Apartments).” 

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 Finally, on June 15, 2022, Plaintiffs sent to Defendants an “amended 

and supplemental expert report” (the “June 15 Report”). The June 15 Report added a climate-zone map and a reference to the same, an opinion concerning violations of the construction agreement between the parties, and 

Nelson’s C.V. 

 The Architect Defendants subsequently filed a motion in limine to 

strike Nelson’s expert reports as untimely and to prohibit him from testifying 

at trial. The Keeney Defendants filed a similar motion. The Architect Defendants also moved for summary judgment, arguing that Plaintiffs would not 

be able to show the applicable standard of care, or that the Architect Defendants breached such standard, if the district court struck Nelson’s reports and 

testimony. 

 The district court granted Defendants’ motions in limine, striking 

Nelson’s expert reports and prohibiting his testimony. It also granted the 

Architect Defendants’ motion for summary judgment on the basis that, without Nelson’s reports, opinions, and testimony, Plaintiffs could not establish 

the standard of care necessary to prove their case. The court therefore dismissed Plaintiffs’ claims against the Architect Defendants with prejudice and 

dismissed the Architect Defendants’ third-party claims against the Keeney 

Defendants without prejudice. After the district court denied Plaintiffs’ motion for reconsideration, Plaintiffs timely appealed. 

II. Jurisdiction

Before reaching the merits, we must address a jurisdictional issue. 

Defendants’ jointly removed the case based on diversity jurisdiction under 

28 U.S.C. § 1332(a), but in their notice of removal, they alleged the 

residence, rather than the citizenship, of members of Plaintiff Maison 

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Lafayette, L.L.C.4 Because allegations of residency alone do not satisfy the 

citizenship requirement for purposes of complete diversity, see MidCap 

Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313–14 (5th Cir. 

2019), we requested a joint response from the parties addressing the diversity 

jurisdiction of federal courts pursuant to 28 U.S.C. § 1653, see id. at 314 

(explaining that § 1653 allows us to overlook jurisdictional-pleading 

deficiencies if a party “can identify allegations and evidence in the record 

demonstrating diversity” (quotation omitted)); see also Seguin v. Remington 

Arms Co., L.L.C., 22 F.4th 492, 494–96 (5th Cir. 2022) (requesting a joint 

letter from the parties to address a pleading defect regarding the citizenship 

of an LLC). 

In response, the parties submitted a joint letter clarifying that Marion 

and Chuck Stewart are and at all relevant times have been citizens of 

Washington State. The parties also pointed to evidence in the record, 

namely, the relevant entities’ filings with the Louisiana Secretary of State, to 

support their correction regarding Marion and Chuck Stewart’s citizenship. 

Finally, the parties requested that we treat their joint letter as an amendment 

to the pleadings of citizenship in the joint notice of removal. 

28 U.S.C. § 1653 clearly states that “[d]efective allegations of 

jurisdiction may be amended, upon terms, in the trial or appellate courts.” 

(emphasis added). Pursuant to that statute, we see no need to take additional 

time in and from the district court on this issue, so we elect to treat the 

parties’ joint letter as an amendment to the pleadings of citizenship after 

_____________________ 

4

 More precisely, Defendants alleged the residence of Marion Stewart and Chuck 

Stewart, both of whom are members of Parc Lafayette, L.L.C. and Lake Charles Gardens, 

L.L.C. Both entities, in turn, are members of Plaintiff Maison Lafayette, L.L.C. See Harvey 

v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008) (explaining that “citizenship 

of a LLC is determined by the citizenship of all of its members”). 

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reviewing the parties’ proposed corrections and record cites that support 

such corrections. See Burdett v. Remington Arms Co., L.L.C., 854 F.3d 733, 

734 n.1 (5th Cir. 2017) (treating as an amendment to the pleadings a joint 

letter that corrected a jurisdictional pleading deficiency regarding the 

citizenship of an LLC’s members); Nadler v. Am. Motors Sales Corp., 764 

F.2d 409, 413 (5th Cir. 1985) (granting motion to amend on appeal allegations 

of an LLC member’s residence rather than citizenship after concluding that 

“the record shows a significant probability of complete diversity”). Based 

on the amendment to the pleadings regarding the citizenship of the parties, 

we are satisfied that the district court had jurisdiction under 28 U.S.C. § 

1332(a). 

We thus have jurisdiction to review the district court’s grant of 

summary judgment, including its prior order excluding Nelson’s reports and 

testimony, under 28 U.S.C. § 1291. See Dickinson v. Auto Ctr. Mfg. Co., 733 

F.2d 1092, 1102 (5th Cir. 1983) (“[A] party may obtain review of prejudicial 

adverse interlocutory rulings upon [the party’s] appeal from adverse final 

judgment, at which time the interlocutory rulings . . . are regarded as merged 

into the final judgment terminating the action.”). 

III. Standard of Review 

Because this case involves the exclusion of expert reports and 

testimony for the purposes of a summary judgment determination, “the 

applicable standards of review overlap somewhat.” Munoz v. Orr, 200 F.3d 

291, 300 (5th Cir. 2000). First, we review the exclusion of expert reports and 

testimony “only for an abuse of discretion [that] amounts to manifest error.” 

Id. We reverse the district court only in “unusual and exceptional cases.” 

Sandifer v. Hoyt Archery, Inc., 907 F.3d 802, 807 (5th Cir. 2018) (alteration 

adopted) (quotation omitted). After we have reviewed the exclusion of the 

evidence at issue, we then “review de novo the grant of summary judgment 

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based on the evidence properly before the district court.” Munoz, 200 F.3d 

at 300. Summary judgment is appropriate when “the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Lincoln v. Scott, 887 F.3d 190, 195 (5th Cir. 

2018) (quoting Fed. R. Civ. P. 56(a)). 

IV. Discussion 

Plaintiffs raise two issues on appeal: (1) whether the district court 

abused its discretion by excluding Nelson’s reports and testimony, and (2) 

whether the district court erred in granting summary judgment in favor of 

Defendants. We address each in turn. 

A. Exclusion of Nelson’s reports and testimony 

Plaintiffs assert that the district court abused its discretion by 

excluding Nelson’s reports and testimony pursuant to Federal Rule of Civil 

Procedure 37(c)(1).5

 We disagree. 

Rule 37(c)(1) provides that “[i]f a party fails to provide information or 

identify a witness as required by Rule 26(a) or (e), the party is not allowed to 

use that information or witness to supply evidence on a motion, at a hearing, 

or at trial, unless the failure was substantially justified or is harmless.” It also 

notes a court’s ability to impose other appropriate sanctions in addition to or 

instead of excluding the witness. Fed. R. Civ. P. 37(c)(1). 

_____________________ 

5

 Plaintiffs do not dispute that the April 26 Report was both untimely and 

incomplete. Additionally, Plaintiffs have forfeited the argument that Nelson’s subsequent 

reports complied with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B) 

because Plaintiffs have not adequately briefed that argument. See Rollins v. Home Depot 

USA, 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an argument . . . by failing to 

adequately brief the argument on appeal.”). 

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We review a district court’s “discretion to exclude evidence that was 

not properly designated by considering the following four factors: (1) the 

explanation for the failure to identify the witness; (2) the importance of the 

testimony; (3) potential prejudice in allowing the testimony; and (4) the 

availability of a continuance to cure such prejudice.” Geiserman v. 

MacDonald, 893 F.2d 787, 791 (5th Cir. 1990) (citations omitted). 

1. First factor: Plaintiffs’ explanation

Regarding the first factor—Plaintiffs’ explanation—the district court 

noted that Plaintiffs did not explain their failure to timely designate a 

complete report. Plaintiffs do not dispute this, nor do they offer an 

explanation on appeal. Accordingly, we hold that the district court properly 

concluded that the first factor favors exclusion. See 1488, Inc. v. Philsec Inv. 

Corp., 939 F.2d 1281, 1289 (5th Cir. 1991) (concluding that exclusion of 

expert witness “is particularly appropriate” when the party has “failed to 

provide an adequate explanation for their failure to identify their expert 

within the designated timetable”). 

2. Second factor: importance of Nelson’s reports and testimony 

Next, the district court held that the second factor—the importance 

of Nelson’s reports and testimony—“does not weigh in Plaintiffs’ favor.” 

The district court acknowledged Plaintiffs’ assertion that Nelson’s 

testimony would be critical to Plaintiffs’ case and that Nelson would have 

been Plaintiffs’ sole expert witness. But the district court reasoned that 

Nelson’s alleged importance to Plaintiffs’ case “only underscores the 

importance of plaintiffs’ compliance with the court’s deadlines.” The 

district court also stated that “the importance of testimony ‘cannot 

singularly override the enforcement of local rules and scheduling orders.’” 

Plaintiffs contend that the district court’s reasoning “flipped the 

second factor upside down.” Plaintiffs rely on Betzel v. State Farm Lloyds, 

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480 F.3d 704, 707–08 (5th Cir. 2007), which criticized two of our earlier 

decisions for concluding that an untimely-disclosed expert’s significance 

underscores the importance of complying with the relevant deadline. 

According to Plaintiffs, the importance factor must favor inclusion of the 

expert when exclusion leaves the proponent without an expert. 

We disagree. Although Nelson is indeed the only expert Plaintiffs 

offer, and therefore an important witness, the district court’s reasoning was 

not an abuse of discretion. That is because we have previously employed 

similar reasoning as the district court when addressing the second Geiserman

factor. 

For example, in Geiserman, we assumed arguendo that the expert 

testimony at issue was significant to the proponent’s case and reasoned that 

the expert’s importance provided “so much the more reason to be sure [the 

expert’s] introduction was properly grounded.” 893 F.2d at 791. Although 

we did not explicitly state which party the importance factor favored, when 

weighing the four factors together, we reasoned that “[t]he claimed 

importance of expert testimony underscores the need for [the proponent] to 

have timely designated his expert witness so that [the opposing party] could 

prepare for trial.” Id. at 792. We also remarked that “[t]he importance of 

such proposed testimony cannot singularly override the enforcement of local 

rules and scheduling orders.” Id. Further, like the present case, exclusion of 

the expert at issue in Geiserman left the proponent without expert testimony 

and resulted in summary judgment. See id. at 793–94. 

Likewise, in Barrett v. Atlantic Richfield Co., we acknowledged the 

significance of the expert testimony at issue but stated that “the claimed 

importance of [the proponent’s] expert testimony merely underscores the 

need for [the proponent] to have complied with the court’s deadlines or at 

least informed the trial judge in advance if good faith compliance was not 

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possible.” 95 F.3d 375, 381 (5th Cir. 1996). Ultimately, we held that “the 

district court did not abuse its discretion in striking the testimony,” even 

though exclusion of the experts at issue left proponents without expert 

testimony and resulted in summary judgment. Id. at 383. 

Although Plaintiffs are correct that Betzel criticized Geiserman and 

Barrett for applying the importance factor in “unexpected ways,” and 

“standing it on its head,” Plaintiffs fail to contend with our rule of 

orderliness. See Betzel, 480 F.3d at 707–08. Under the rule of orderliness, 

“one panel of our court may not overturn another panel’s decision, absent 

an intervening change in the law, such as a statutory amendment, or the 

Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intell. Ctr., 548 

F.3d 375, 378 (5th Cir. 2008) (emphasis omitted). “Indeed, even if a panel’s 

interpretation of the law appears flawed, the rule of orderliness prevents a 

subsequent panel from declaring it void.” Id. To the extent two panel 

decisions conflict, the earlier decision controls. GlobeRanger Corp. v. Software 

AG United States of Am., Inc., 836 F.3d 477, 497 (5th Cir. 2016). Because 

Geiserman (1990) and Barrett (1996) predate Betzel (2007), and we have not 

found a relevant intervening change in the law, Betzel’s criticism of the 

reasoning in those opinions does not render the district court’s reliance on 

such reasoning an abuse of discretion. 

We therefore hold that the district court did not abuse its discretion 

by concluding that the second factor “does not weigh in Plaintiffs’ favor.”6

 

3. Third factor: potential prejudice to Defendants

_____________________ 

6

 Plaintiffs paraphrase the district court’s analysis as: “if the witness is so important, 

then you shouldn’t miss deadlines—factor two favors [Defendants].” While the district court’s 

focus was that the high importance of this expert did not favor the Plaintiffs’ position rather 

than that it helped the Defendants’ position, Plaintiffs correctly acknowledge that our 

precedent supports the Defendants on this element in this situation. 

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Turning to the third factor—potential prejudice to Defendants—the 

district court found the existence of “prejudice to [Defendants], who were 

not provided with a sufficient expert report until far past the deadline 

provided in the Scheduling Order.” According to the district court, 

disregard for discovery deadlines “disrupts the court’s docket and 

opponent’s preparation, and thus, is prejudicial.” Acknowledging Plaintiffs’ 

contention that the June 15 Report was fully compliant with Rule 26(a)(2)(B), 

the district court responded that Plaintiffs produced the June 15 Report less 

than a week before the close of discovery. Additionally, because Plaintiffs’ 

discovery responses affirmatively represented to Defendants that they had 

not retained any expert witnesses, the district court concluded that 

Defendants were not on notice that Plaintiffs had retained Nelson as an 

expert prior to the April 21 disclosure deadline. 

Plaintiffs question whether Defendants suffered any prejudice at all 

aside from “los[ing] the advantage of litigating against Plaintiffs armed 

without an expert.” According to Plaintiffs, the district court’s only example 

of prejudice to Defendants was a five-day delay in the official designation of 

Nelson. Plaintiffs posit that “[w]hether or not the report Nelson provided 

on that date was substantively deficient, the notification delay was less than 

one week—disclosed with over seven weeks left in the discovery period.” 

We hold that the district court did not abuse its discretion by 

concluding that the third factor favored Defendants. Even when “the degree 

of prejudice suffered by the [proponent] due to the late designation would 

not have been great, a district court still has the discretion to control pretrial 

discovery and sanction a party’s failure to follow a scheduling order.” 1488, 

Inc., 939 F.2d at 1288–89. For example, in Geiserman, we held that 

designating an expert witness two weeks after the deadline to do so 

“disrupt[s] the court’s discovery schedule and the opponent’s preparation.” 

Geiserman, 893 F.2d at 791. Additionally, even though Plaintiffs put 

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Defendants on notice of Nelson’s expert designation five days after the 

deadline, Plaintiffs do not contest that the April 26 Report lacked information 

required by Rule 26(a)(2)(B). As the district court noted, Plaintiffs 

submitted their June 15 Report, which contained new information, less than 

a week before the close of discovery. By that time, Defendants’ experts had 

already submitted their own reports and been deposed. Accordingly, 

Plaintiffs’ conduct deprived Defendants’ experts of an opportunity to 

address the new information in Nelson’s June 15 Report before the close of 

discovery. 

For these reasons, we conclude that the district court did not abuse its 

discretion by finding prejudice to Defendants. 

4. Fourth factor: availability of a continuance 

On the fourth factor—the availability of a continuance—Plaintiffs 

argue that the district court abused its discretion by failing to consider this 

factor at all. Plaintiffs also assert that any alleged prejudice could have been 

cured by allowing Defendants to depose Nelson and providing Defendants 

an opportunity to offer expert testimony in rebuttal. According to Plaintiffs, 

we have “repeatedly stated that continuance is the preferred methodology of 

dealing with a party’s attempt to designate a witness out of time.” 

We hold that the district court’s analysis of the continuance factor 

does not constitute an abuse of discretion. Plaintiffs’ assertion that the 

district court failed to consider the continuance factor whatsoever finds little 

support in the district court’s opinion. After the district court discussed the 

first three factors in sequential order, it turned to Plaintiffs’ refusal to join 

with Defendants in a motion to continue various deadlines, including 

Plaintiffs’ own expert disclosure deadline. Noting that Plaintiffs refused an 

opportunity to extend their expert disclosure deadline, the district court 

reasoned that a court “must have some sanction available to enforce its own 

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deadlines and rules.” Although the paragraph at issue does not explicitly 

label itself as the district court’s analysis of the continuance factor, the 

content of the paragraph does. 

Further, contrary to Plaintiffs’ contention, the district court’s 

consideration of Plaintiffs’ refusal to join Defendants in seeking a 

continuance is not an abuse of discretion. Plaintiffs attempt to support their 

position by pointing to cases in which we have considered the ability of a 

continuance to cure the specific prejudice alleged. See In re Complaint of C.F. 

Bean L.L.C., 841 F.3d 365, 374 (5th Cir. 2016) (holding that because a 

continuance would allow the prejudiced party to produce a rebuttal report 

and re-depose the proposed expert at issue, the continuance factor weighed 

in favor of admitting said expert); E.E.O.C. v. Gen. Dynamics Corp., 999 F.2d 

113, 116 (5th Cir. 1993) (holding that “whatever prejudice would have 

resulted from permitting [the proposed expert] to testify could have been 

cured by a continuance”). But Plaintiffs fail to identify any precedent barring 

courts from considering whether the proponent of an untimely expert report 

declined an opportunity to cure such untimeliness by refusing to join a 

motion to continue that would have extended deadlines for both parties and 

therefore lessened any prejudice to the opposing party. Put another way, 

Plaintiffs were only willing to have extra time for them, not a similar 

extension for the Defendants who would need to, of course, have an expert 

that addressed the Plaintiffs’ expert. Such a notion on the part of the 

Plaintiffs was totally improper. 

Additionally, while it is true, as Plaintiffs assert, that “a continuance 

is the preferred means of dealing with a party’s attempt to designate a witness 

out of time,” that doesn’t end the matter. Campbell v. Keystone Aerial Survs., 

Inc., 138 F.3d 996, 1001 (5th Cir. 1998) (quotation omitted). “Because of a 

trial court’s need to control its docket, a party’s violation of the court’s 

scheduling order should not routinely justify a continuance.” Hamburger v. 

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State Farm Mut. Auto Ins., 361 F.3d 875, 884 (5th Cir. 2004); see also AIG 

Eur., Ltd. v. Caterpillar, Inc., 831 F. App’x 111, 116 (5th Cir. 2020) (per 

curiam) (“While continuances are the preferred means of dealing with 

untimely expert reports, they are the exception.”). We have also recognized 

that a continuance will “not deter future dilatory behavior, nor serve to 

enforce local rules or court imposed scheduling orders.” Geiserman, 893 

F.2d at 792; accord 1488, Inc., 939 F.2d at 1289 (quoting same). 

Here, Plaintiffs demonstrated a lack of respect for the court’s 

scheduling order by producing an untimely and deficient expert report and 

then “supplementing” its content over the course of two months in an 

apparent attempt to stretch the court’s deadline while, at the same time, 

declining to agree to a continuance for both sides. We therefore conclude 

that the district court did not abuse its discretion by deciding that a 

continuance would not be appropriate. 

In sum, after reviewing the district court’s analysis of the relevant 

factors, we conclude that this is not one of the “unusual and exceptional 

cases” in which the district court’s decision to exclude an expert’s report 

and testimony was “manifestly erroneous.” See Sandifer, 907 F.3d at 807 

(quotations and alteration omitted) (emphasis in original). 

B. Summary Judgment 

Next, we turn to Plaintiffs’ argument that the district court erred in 

granting the Architect Defendants’ motion for summary judgment. 

The district court granted summary judgment after concluding that 

Plaintiffs did not produce evidence of the applicable standard of care for 

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Louisiana architects, an essential element of their claims.7 Plaintiffs argue 

that the district court abused its discretion by refusing to consider Nelson’s 

affidavit, which Plaintiffs produced for the first time with their summary 

judgment opposition, and which they contend provides evidence of the 

applicable standard of care. We hold that the district court did not abuse its 

discretion by excluding Nelson’s affidavit. See Geiserman, 893 F.3d at 793 

(“Since the court ruled that [the proponent] could not offer expert testimony 

at trial, [the proponent] cannot use that expert witness’s affidavit to oppose 

summary judgment.”). Accordingly, the district court did not err by granting 

the Architect Defendants’ motion for summary judgment. 

V. Conclusion 

For the reasons discussed above, we AFFIRM the district court’s 

orders. 

_____________________ 

7

 Plaintiffs do not dispute on appeal that establishing the applicable standard of care 

for Louisiana architects is an essential element of their claims, nor do they dispute that, 

under Louisiana law, they must do so through an expert. 

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